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Supreme Court 16 June 2022

R v Bean

[2022] NSWSC 783

Homicide

Citation: R v Bean [2022] NSWSC 783
Court: Supreme Court of New South Wales
Date: 16 June 2022
Judge: Cavanagh J

Background

The offender was charged with murdering a former close friend after discovering that friend had been in a relationship with the offender's long-term de facto partner. On 18 October 2018, after weeks of escalating and mutually threatening text messages, the deceased drove at high speed onto the offender's property and deliberately drove his car directly at the offender. The offender jumped clear, and the car crashed into a parked vehicle. The offender then retrieved a rifle from beneath his bed and shot the deceased while he remained seated in the car.

The offender stood trial twice before juries, both of which were unable to reach a verdict. At the commencement of the second trial, the offender entered a plea of not guilty to murder but offered a guilty plea to manslaughter. The Crown did not accept that offer at the time. When the matter returned in February 2022, the Crown accepted the plea of guilty to manslaughter in full satisfaction of the indictment. The agreed basis for sentencing was self-defence with excessive force under section 421 of the Crimes Act 1900 (NSW), that is, the offender believed self-defence was necessary but used more force than was reasonably required.

The offender had been in custody since 31 October 2018. Cavanagh J proceeded to sentence on the agreed facts, supplemented by the trial transcript and the offender's oral evidence on remorse.

  • Whether the offender intended to kill the deceased or merely to inflict grievous bodily harm, as this bore on objective seriousness
  • Where the offender's conduct fell within the general range of culpability for manslaughter, given the excessive-force basis and the provocation context
  • Whether special circumstances existed to justify departing from the standard ratio of non-parole period to total sentence
  • What discount applied for the guilty plea, and whether the plea qualified as early given it was entered at the commencement of the second trial

Decision

Cavanagh J found that the circumstances of the offending placed it in the lower to mid-range of manslaughter cases, but not at the lowest end. The deceased had driven at the offender with apparent intent to harm him, and the offender subjectively believed he was acting in self-defence. However, shooting an unarmed man who was seated in a car after the immediate threat had passed was objectively an excessive and unreasonable response. The court found the offender's conduct fell somewhere between the least serious and the most serious cases of manslaughter by excessive self-defence, taking into account the surrounding circumstances of mutual hostility.

On the contested question of intent, the court found it unnecessary to reach a definitive conclusion, treating the matter consistently with the agreed facts and the general sentencing range. The court identified a strong subjective case in the offender's favour: he had no prior relevant criminal history, had positive character references, and a psychologist's report supported genuine remorse. The court accepted that the offender showed real contrition, which was relevant to prospects of rehabilitation.

Cavanagh J found special circumstances, principally because the offender had spent a significant period in pre-sentence custody and would need structured supervision upon release to support rehabilitation. This justified adjusting the ratio between the non-parole period and the balance of the sentence.

The court accepted that the guilty plea, entered at the commencement of the second trial, qualified for the maximum 25% discount. Although two trials had been conducted, the plea was entered before any evidence was called in the second trial, which the court treated as a sufficiently early indication of guilt to attract the full discount.

Orders Made

  • Total sentence of 6 years imprisonment for manslaughter
  • Non-parole period of 4 years, with a balance term of 2 years
  • Sentence backdated to 31 October 2018 (date of entry into custody)
  • Parole eligibility: 30 October 2022
  • Total sentence expiry: 30 October 2024
  • The offender's solicitor directed to advise the offender of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW)

Key Takeaways

  • A plea of guilty to manslaughter entered at the commencement of a retrial, before any evidence is called, may attract the maximum 25% sentencing discount as an early plea, even where an earlier trial concluded without verdict.
  • Self-defence with excessive force under section 421 of the Crimes Act 1900 (NSW) does not produce a fixed sentencing range; the court must assess where the particular conduct sits across the broad spectrum of manslaughter cases, having regard to the degree of unreasonableness in the response and the subjective circumstances of the offender.
  • Special circumstances justifying a longer parole period can arise from a combination of extended pre-sentence custody and the need for supervised reintegration, particularly where rehabilitation prospects are assessed as reasonable.
  • Mutual hostility and provocation in the lead-up to a fatal incident are relevant to objective seriousness, but do not displace the need for proportionality in any defensive response; shooting a seated occupant after the immediate physical threat had passed remained objectively excessive.
  • Where a family impact statement reveals serious ongoing harm to the deceased's children, the court considers those effects as reflecting harm to the community, while remaining mindful of the legal constraints on how such statements are used in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 421 (self-defence with excessive force)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Black v R [2022] NSWCCA 17
- Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lawson v R [2018] NSWCCA 215; (2018) 86 MVR 107
- Smith v R [2015] NSWCCA 193
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64